Steven Tod Baseden v. Department of the Navy ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN TOD BASEDEN, DOCKET NUMBER
Appellant, DC-3443-14-0468-I-1
v.
DEPARTMENT OF THE NAVY, DATE: December 4, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Tod Baseden, FPO, APO/FPO Europe, pro se.
Thomas Kathe, Jacksonville, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his reduction in pay appeal for lack of jurisdiction without a hearing.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM as modified the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The agency selected the appellant for a Civil Engineer position at a GS-12,
Step 5 rate pursuant to a rotation agreement, which the appellant signed on
December 11, 2013. Initial Appeal File (IAF), Tab 5 at 4-5. Upon his entrance
on duty in January 2013, the appellant was paid at a GS-12, Step 1 rate. IAF, Tab
6 at 28, 38. The appellant’s appointment was in the competitive service and was
subject to a 1-year probationary period. Id. at 38.
¶3 The appellant filed a timely appeal alleging that he should have been
reinstated rather than appointed to this position and that the correct grade level of
the position was GS-12, Step 5. IAF, Tab 1. He alleged that the agency
committed harmful error by not following its own procedures with respect to his
appointment, and that the agency’s actions were unlawful. Id. The
administrative judge issued an order to show cause, which gave the appellant
notice of his burden for establishing the Board’s jurisdiction over a reduction in
pay appeal. IAF, Tab 3. In response to the administrative judge’s show cause
order, the appellant argued that he was employed prior to the effective date
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indicated on the Standard Form 50 documenting the appointment (January 22,
2014) because his rotation agreement identified him as an “employee” on
December 11, 2013, and his travel orders were issued and funded on January 6,
2014. IAF, Tab 5 at 3. He also argued that his grade and step level had been set
at GS-12, Step 5 because that grade and step level was indicated on his rotation
agreement. Id. In its narrative response to the appeal, the agency argued that the
Board lacks jurisdiction over the appeal because the appellant did not meet the
definition of an employee as defined by 5 U.S.C. chapter 75, and had not been
subjected to an appealable action because his rate of pay had not been reduced.
IAF, Tab 6 at 11-12. The administrative judge issued an initial decision, without
holding a hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 10,
Initial Decision (ID). The administrative judge found that, based on the
“unrefuted record,” the appellant could not establish that he was an employee
within the meaning of 5 U.S.C. § 7511(a)(1). ID at 5-6. The administrative judge
also found that, even assuming the appellant could establish that he was an
employee within the meaning of 5 U.S.C. § 7511(a)(1), he failed to make a
nonfrivolous allegation that he suffered a reduction in pay. ID at 6.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response in opposition to the
appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board generally
has jurisdiction to review an employee’s appeal of a reduction in grade or pay,
see 5 U.S.C. §§ 7512, 7513(d), but the administrative judge properly found that
the Board lacks jurisdiction over this appeal because the appellant has not made a
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nonfrivolous allegation that he is an employee within the statutory definition
of 5 U.S.C. § 7511(a)(1), ID. 2
¶6 A nonfrivolous allegation of Board jurisdiction is an allegation of fact
which, if proven, could establish a prima facie case that the Board has jurisdiction
over the matter at issue. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329
(1994). To meet the nonfrivolous standard, an appellant need only plead
allegations of fact which, if proven, could show jurisdiction, though mere pro
forma allegations are insufficient to satisfy the nonfrivolous standard. Walker v.
Department of the Army, 119 M.S.P.R. 391, ¶ 6 n.2 (2013). In determining
whether the appellant has made a nonfrivolous allegation of jurisdiction entitling
him to a hearing, the administrative judge may consider the agency’s
documentary submissions; however, to the extent that the agency’s evidence
constitutes mere factual contradiction of the appellant’s otherwise adequate prima
facie showing of jurisdiction, the administrative judge may not weigh evidence
and resolve conflicting assertions of the parties, and the agency’s evidence may
not be dispositive. Ferdon, 60 M.S.P.R. at 329.
¶7 In the competitive service, an employee is an individual either: (1) who is
not serving a probationary or trial period under an initial appointment, or (2) who
has completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A). According to
the agency, the appellant was appointed to a career conditional position in the
competitive service, effective January 22, 2014, that was subject to the
2
An appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985). Although the administrative judge’s order to show cause
did not give the appellant explicit notice about the evidence and arguments he must
present in order to establish that he met the statutory definition of employee under
5 U.S.C. § 7511(a)(1)(A), see IAF, Tab 3, we find that the agency’s narrative response
to the appeal and the initial decision put the appellant on notice of what he must do to
establish that he was an employee, thus affording him the opportunity to meet his
jurisdictional burden in his petition for review, IAF, Tab 6 at 11-12, ID at 5-6; see, e.g.,
Scott v. Department of Justice, 105 M.S.P.R. 482, ¶¶ 5-6 (2007).
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completion of a 1-year probationary period, which commenced that day. IAF,
Tab 6 at 38. The appellant had not completed 1 year of current continuous
service as of the date he alleges his pay was reduced, February 3, 2014. 3 IAF,
Tab 5 at 3. There had been a 10-year break in service between his prior position
in the competitive service and the appointment at issue in this appeal. IAF, Tab 6
at 62. Therefore, in the absence of a nonfrivolous allegation by the appellant
regarding his status as a probationary employee, the administrative judge properly
determined that the appellant is not an employee as defined by 5 U.S.C.
§ 7511(a)(1).
¶8 The appellant argues that his appointment was invalid and unlawful and, as
a result, he is not a probationary employee but is still an applicant. PFR File, Tab
1 at 4. Even if the Board were to find, as the appellant argues, that he remains an
applicant, the Board would not have jurisdiction over his appeal because
applicants are not entitled to appeal reduction in pay claims to the
Board. 5 U.S.C. § 7513(d) (authorizing an adverse action appeal by an
“employee”).
¶9 The appellant also argues on review that the agency agreed to reinstate
rather than appoint him. PFR File, Tab 1 at 10. To support this allegation the
appellant cites to his rotation agreement. Id. Even if, as the appellant alleges, the
agency “agreed” to reinstate him in his rotation agreement, the appellant has not
alleged that he was actually reinstated. The appellant has not provided any
authority, beyond his pro forma assertion, to support his contention that the
agency was required to reinstate him because his rotation agreement notes
reinstatement. Agencies have discretion in determining how to fill vacancies in
the competitive service and can choose to fill them by competitive appointment
from a list of eligibles, noncompetitive appointment under special authority,
3
The result is the same using either of the earlier dates the appellant claims he was
considered an “employee” by the agency, December 11, 2013, the date of his rotation
agreement, or January 6, 2014, the date his travel orders were issued. IAF, Tab 5 at 3.
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reinstatement, transfer, reassignment, change to lower grade, or
promotion. 5 C.F.R. § 330.102. The agency has presented a number of
documents indicating that the appellant was appointed from a list of eligibles and
not reinstated. The appellant’s contention that he was reinstated, supported only
by an allegation that the agency “agreed” to reinstate him in his rotation
agreement, is insufficient to establish a prima facie case of jurisdiction.
¶10 The administrative judge determined that, even if the appellant could
establish that he is an employee as defined at 5 U.S.C. § 7511(a)(1), the Board
would still lack jurisdiction over his reduction in pay claim because the appellant
has not made a nonfrivolous allegation that he suffered a demonstrable loss in
pay. ID at 6. We disagree. The appellant has submitted a rotation agreement,
which he signed on December 11, 2013, indicating that the agency selected him
for a GS-12, Step 5 Civil Engineer position. IAF, Tab 5 at 4-5. The agency,
however, only paid him at a GS-12, Step 1 rate, and not at the higher Step 5 rate,
upon his entrance on duty in January 2013. IAF, Tab 6 at 38.
¶11 The administrative judge incorrectly found that the agency never appointed
the appellant to the Civil Engineer position at a GS-12, Step 5 rate. ID at 6. For
an appointment to take effect, an authorized appointing officer must take an
action that reveals his awareness that he is making an appointment in the United
States civil service and the affected employee must take some action denoting
acceptance. Deida v. Department of the Navy, 110 M.S.P.R. 408, ¶ 13 (2009). In
this case, the appellant nonfrivolously alleged that the appointment to the GS-12,
Step 5 Civil Engineer position was approved by an authorizing appointing official
through the rotation agreement and that he took some action denoting acceptance
of the appointment by signing the agreement. Moreover, the appellant has
nonfrivolously alleged that the appointment was not revoked prior to taking
effect. Cf. Levy v. Department of Labor, 118 M.S.P.R. 619, ¶ 10 (2012) (to
establish jurisdiction over the cancellation of a promotion as a reduction in grade,
the appellant most show, inter alia, that the promotion was not revoked before it
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became effective). We therefore find that the appellant has made a nonfrivolous
allegation that he suffered a loss in pay but still find that the Board lacks
jurisdiction over his reduction in pay claim because he is not an employee within
the meaning of 5 U.S.C. § 7511.
¶12 Finally, the appellant raises for the first time on review an allegation that
the agency committed a prohibited personnel practice by not complying
with 5 U.S.C. § 2302(b)(12). PFR File, Tab 1 at 8. Prohibited personnel
practices under 5 U.S.C. § 2302(b) are not an independent source of Board
jurisdiction. Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980). The
Board does not have jurisdiction over the appellant’s prohibited personnel
practice claim under 5 U.S.C. § 2302(b)(12) because there are no otherwise
appealable actions in the appeal. See, e.g., Hugenberg v. Department of
Commerce, 120 M.S.P.R. 381, ¶ 25 (2013).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.